December 22, 2009

The Georgia Supreme Court has upheld a Fulton County court ruling, concluding that under the law, an elderly husband and wife lost their chance to get back their home which was sold in a tax sale after they failed to pay property taxes.

According to briefs filed in the case, The Reverend Forrest Saffo and his wife Sallie are in their late 70s and have been married 54 years. He is the retired pastor of New Mountaintop Baptist Church in Douglas County and they have lived on Chickadee Court in Southwest Atlanta for 26 years. Initially, their property taxes were paid out of an escrow account connected with the mortgage. But once that stopped, from 1991 on, the Saffos did not pay property taxes. On Feb. 1, 2000, the Fulton County Sheriff‟s office sold the property in a sale for $51,406.88 to the highest bidder, Foxworthy, Inc. Under state law, the Saffos could have gotten the property back if before Feb. 1, 2001, they paid Foxworthy the sale amount plus other taxes, costs and penalties that increase with time. They did not. Eventually, the amount the Saffos owed to redeem their property totaled $112,516, and in 2004, Foxworthy filed eviction papers against the Saffos.

The Saffos filed a lawsuit, seeking an injunction barring Foxworthy from dispossessing them of their property and seeking recovery of damages. In 2008, the trial court ruled in favor of Foxworthy, finding that the Saffos’ right to redeem the property was permanently barred because they had failed to pay the redemption amount. The trial court also ruled that if, as the Saffos claimed, the tax sale should be invalidated because the Sheriff had failed to comply with the law’s tax sale requirements, their remedy would be to sue the sheriff, not Foxworthy. The Saffos then appealed to the state Supreme Court.

In an opinion written by Justice David Nahmias, the high court agreed with the trial court and upheld the ruling. “It is undisputed that the Saffos never paid or tendered the redemption amount,” the opinion says. “Accordingly, the trial court did not err in dismissing the Saffos’ complaint for failing to pay or tender the redemption amount as required by [Official Code of Georgia] § 48-4-47.” The Saffos also claimed that requiring them to pay $112,516 to get their property back violates their constitutional right to due process, when the amount dwarfs the $2,000 in unpaid taxes their property was sold to satisfy, and when it’s double the size Foxworthy paid for it. The opinion points out that it would have cost the Saffos a lot less had they tried to redeem the property earlier. “The enforcement and collection of taxes through the sale of the taxpayer’s property [can be] a harsh procedure,” the opinion says, quoting a 1993 opinion. “But procedures may be harsh without being unconstitutional.”

While Justice Robert Benham agrees with the majority’s legal analysis, he writes in a concurrence that “I nevertheless believe the result to be harsh and not in keeping with protecting homeowners’ rights.” The law, he says, “places an onerous burden on persons trying to save their homes. A small tax delinquency can quickly balloon into a substantially greater amount depending on the bid made on the court house steps.” In this case, under the state’s tax sale scheme which gives no consideration for hardship to pay, the Saffos had little chance to get their home back once the tax sale occurred. “That seems patently unfair, especially given the current economic environment,” Justice Benham writes. “I recognize, however, that this is an issue only the legislature may address, and so I reluctantly concur with the judgment.” Chief Justice Carol Hunstein joins in the concurrence.